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The Political Use of Ethics Complaints, and the Manipulation of the Press

Saturday, July 17th, 2010

Robert Wechsler

There's a
good
opinion piece by Austin American-Statesman columnist Jason
Embry this week on the political use of ethics complaints. The
instances of abuse of the ethics process is what has led many
jurisdictions to prohibit any mention of filing an ethics complaint and
to prohibit the filing of ethics complaints within sixty or so days of
an election.

"Here's what happens," Embry wrote. "A campaign thinks it has the goods
on its opponent, so an ally files an ethics complaint. Then the
campaign publicizes said complaint, and it filters out through the news
media. The commission may or may not act on it before the election."
Usually an EC doesn't have the resources to act quickly enough.

Here's one example Embry gives. The chair of one Texas political party
filed a complaint against the other party's gubernatorial nominee,
saying he had left some of his income off his state disclosure form.
The gubernatorial candidate
insisted that he followed the law. "But just by filing the complaint,
[the other party] picked up yardage [and its] team produced a video
showing 11 Texas television anchors reading that a complaint had been
filed ... for a 'failure to report' income," even though the matter
had not yet been investigated.

What should be done in this instance? It would not be at all unfair for
the complaint to be automatically dismissed, and for the state ethics
commission to send out a stock press release stating that the matter
had been dismissed on account of the candidate's abuse of the ethics
process.

It would also not be unfair for the ethics commission to be required to
file a complaint against the candidate, or against anyone other than
the respondent, for illegally announcing the filing of the complaint.
This too could be mentioned in the stock press release, and the
possible penalties for this illegal act could be included there as well.

This would mean that, if the EC were told of an illegal mention of the
filing of a complaint, especially during an election season, it would
automatically counter that mention with its own press release, which
would presumably get equal time in the news media and blogosphere. The
result would be that a party and candidate would know that, if they
abuse the ethics process for political purposes, they will lose just as
much or more, because the one making the announcement would be the EC,
and its action would not be seen as political, because it is required.

Unfortunately, this would mean that many complaints would instead be
publicized by an independent (or apparently independent) organization
or individual whom no one knows or cares about. The complaint may still
be dismissed, but the damage to the opposing candidate's reputation
would have been done.

The only person who may mention a complaint is the respondent, whose
reputation is on the line. If the
respondent publicly defends himself against a complaint that has not
been made public, then the complaint is public knowledge, and anything
goes (at least anything true).

And the first amendment allows anyone who believes a candidate has
done something illegal to say so publicly. What they can't do is
legitimize it by saying that a complaint was filed. This seem
senseless,
but it is no more senseless than the news media's rule that the filing
of a
complaint makes a matter far more legitimate than a mere accusation.

It's ironic that the news media is both the greatest defender of
government transparency, the greatest supporter of government ethics,
and one of the major causes of a lack of transparency in the ethics
process.

But the real culprits are those who cynically manipulate the news
media, who believe that the end justifies the means, even in a process
that rejects this sort of ethical approach (see an earlier blog post on
ends-based vs. rules-based ethics).